Monday, April 30, 2012

Unfortunately, I am unable to share the names of the persons involved in this case. Suffice it to say that a male Non-commissioned officer in the Army was accused by a female Non-commissioned officer of sexual battery under the UCMJ in a truly he said/she said case, i.e. no witnesses and no physical evidence, and the military dismissed the charges against him.

I was able to convince the Article 32 Investigating Officer that the accuser was lying in much the same way the Duke Lacrosse players attorneys were able to convince the Judge that their accuser was lying. An Article 32 is a military hearing to determine if enough reasonable grounds exist to forward the case to a court martial; this is a very low burden. Many of the "details" she gave to local authorities and the Army's Criminal Investigative Division (CID) were completely contradicted by the evidence that we presented, which consisted of pictures of the crime scene as she alleged and phone records.

In June 2011, the accuser alleged to the local police that she went to my client's house at night in late November or early December 2010 and watched TV where she was sexually assaulted on his couch. During her Article 32 testimony, she described the entertainment center as dark wood and the couch as a tannish or cream colored cloth sofa. Actually, my client's entertainment system is white and he has a chocolate leather sofa. Also, the accuser said that she called him on his cell phone twice on the way over to his house, but his cell phone records indicated that she never called him during the two month period in which she alleged the assault occurred. My client was adamant that the accuser has never been to his house. I finally learned today that the General Court Martial Convening Authority dismissed the case without prejudice, so I can ethically comment on the case.

Two things struck me about this case. First, my client exercised his right to speak to an attorney, which is always the right thing to do. I will admit that exercising your rights to an attorney under the 5th Amendment is difficult to do when you are innocent because you would prefer not to pay for a consultation for something you did not do. If you can find an attorney, like me, who will provide a free initial consultation, then at least you are not out a ton of money if the charges are dropped before you are charged. However, most attorneys want to be retained and earn a fee for their advice. While it is difficult to keep quiet when you know you are innocent, believe it or not, there are sexual assault reponse counselors ("SARC") who will help their "victims" clear up lies by allowing them to review the accused's sworn statement or ask them leading questions after the SARC reviews the accused's statement, so the accuser can amend her statement.

My client did the right thing and allowed this woman to make two sworn statements without anyone hearing his side, so that she could not fix her statements. I find myself often times convincing my male clients to be stoic and allow the lying accuser to keep talking in anticipation that the tales will grow so outlandish that even the investigator will not believe the accuser. Even if I have a video clearly showing consent, my policy is that when confronted with a false allegation, the best thing to do is to say nothing until you speak to an attorney. The military has recently criminalized surreptitiously recording a sex act between you and your partner, even for alibi purposes in a 2012 amendment to Article 120 of the UCMJ, so if a Servicemember produces a video, then he will probably receive non-judicial punishment.

Second, this accuser's allegations could have been easily disproved even without my client's statement. Usually, CID will request that an accuser draw a diagram of the alleged crime scene. This is particularly important when the alleged assault supposedly occurred at the accused's home and the details of which would support that the accuser was actually in his home. In this case, the CID agent did admit that she should have directed the accuser to draw a diagram of the accused's home to prove that she was there, but the agent failed to do that. The agent also failed to ask the accuser to describe details regarding the accused's home, such as what kind of couch he had, what the entertainment center looked like, etc. Once the CID agent got that information, she could have gotten a search warrant and could have taken pictures of the accused's home. When it did not look as the accuser described, then the CID agent could have gone back to the accuser and confronted her with the pictures to see if the accuser would admit that she was lying. If it looked exactly how the accuser described, then at least the CID agent could have taken solace in the belief that the accuser had been there before.

The accuser stated that she called my client's cell phone from her cell phone on the way over to his house to get directions twice and that it was dark when she began driving over to his house. His cell phone records clearly showed that she never called him. In fact, he made 3 calls to her during the two month window when she said the alleged assault occurred, none of which were after 3:30 p.m. or over one minute. Once again, CID should have requested her cell phone records to show that she made the phone calls to him. Had they done that, then perhaps they would realize that her story was contradicted or she might have confessed to making the incident up.

When I finished my examination of the CID agent during her Article 32 testimony where I questioned her failure to get a diagram of the accused's home, the accuser's cell phone records, or conduct any other kind of investigation whatsoever, the Special Victim Prosecutor (SVP) led her with questions about "victimization of the victim." The SVP actually attempted to justify NOT asking questions or requesting corroborating evidence because it would further victimize the victim if the accuser thought for a second that CID did not believe her. I have been doing this kind of criminal litigation for about 10 years now, both as a prosecutor and a defense counsel, and I have seen CID go from investigating the veracity of the accuser's claims somewhat thoroughly to merely taking a sworn statement without any attempt to determine whether the accuser is telling the truth.

In addition to all of this evidence showing a lack of corroboration of her story, this particular accuser had a history of mental health treatment. She also had a history of making up lies to explain her shortcomings in life. I believe that she might have made a false allegation at a previous duty station. The SVP fought me every step of the way in trying to get her mental health records, which I believed were quite relevant, especially if she was diagnosed with a histrionic personality disorder. This alleged victim accused my client of sexual assault in June 2011, after she returned to the unit in May 2011 because she failed out of a military leadership course; she testified that she heard my client say that she was stupid.

The lesson learned from this case is that military accused are on their own when accused of sexual assault, and it is up to them to prove their innocence. They can no longer rely on NCIS, CID, or AFOSI to conduct an unbiased investigation into the veracity of an accuser's allegations because these agents are trained to avoid at all costs "victimizing the victim." The accused needs to lawyer up and begin collecting adverse evidence regarding the accuser immediately. My client was fortunate that he was able to provide me evidence that showed he was innocent. Had he not, then I imagine I would be representing him at a General Court-martial.

Friday, April 27, 2012

A man who has served nearly 16 years in prison for the 1994 rape and murder of a Palisade woman has been exonerated by new testing of DNA evidence in the case.

Robert D. Dewey, 51, is scheduled to appear Monday before District Judge Brian Flynn for a motions hearing, according to court records.

At that time, prosecutors and an appellate attorney representing Dewey are expected to file a joint motion to dismiss Dewey’s jury-trial conviction on charges of felony murder and first-degree sexual assault, according to Stephen Laiche, one of two attorneys who defended Dewey at trial in 1996.

Mesa County District Attorney Pete Hautzinger on Thursday declined to comment.

Bert Nieslanik, head of the Office of Alternate Defense Counsel in Mesa County, distributed an email Thursday to Grand Valley defense attorneys announcing Dewey’s exoneration will be the subject of a news conference that is expected to be called for 10 a.m. Monday. Dewey, who has maintained his innocence in the June 1994 slaying of 19-year-old Palisade resident Jacie Taylor, is expected to be released from custody Monday, according to the email.

Advancements in DNA are to be credited, while Laiche also praised Hautzinger’s office.

“They could have fought us on this thing, but they realized they had an innocent man,” he said. “It makes me wonder what we could have done differently.”

Dewey was sentenced Oct. 16, 1996, by then-District Judge Charles Buss, to serve life in prison without the possibility of parole following a monthlong trial that was prosecuted by Rich Tuttle, current assistant district attorney under Hautzinger, and Martha Kent, now in private defense practice.

“I am happy to impose it on you,” Judge Buss told Dewey shortly before passing sentence, according to The Daily Sentinel’s published story on the sentencing hearing.

“There’s still a killer out there,” Dewey told the judge earlier in the hearing, according to the Sentinel story.

Dewey was arrested April 18, 1995, after a Mesa County Sheriff’s Department investigation into Taylor’s murder.

The arrest happened five days after Dewey was released on parole from a one-year sentence for a weapons charge, according to the Colorado Department of Corrections.

Taylor was found dead June 4, 1994, inside her apartment in 855 Inness Court in Palisade, her partially clothed body submerged in a bathtub and bound with a nylon dog leash.

She was strangled with the leash, beaten and sexually assaulted.

While cleared by modern DNA, the DNA technology available at the time offered conflicting information for jurors to consider in Dewey’s case, according to the Sentinel’s coverage of Dewey’s trial.

An expert witness for the prosecution testified blood stains found on a work shirt belonging to Dewey were consistent with a mixture of blood from Dewey and Taylor, telling jurors that approximately 45 percent of the Caucasian population at the time could have donated the blood.

Yet another DNA expert testified there was no evidence that Taylor’s blood was on the shirt.

Laiche told the jury that investigators knew someone other than Dewey was involved in Taylor’s slaying because DNA testing showed material found underneath Taylor’s fingernail and a semen stain on a blanket inside her apartment didn’t match Dewey’s DNA.

“I just wonder how many other Robert Deweys are out there,” Laiche said Thursday.

AN INDIAN national jailed for giving false information to a public servant had her sentence reduced from two years to 18 months.

Muskan Balaggan, 21, appealed against her sentence before the High Court in Suva.

In his judgment yesterday, Justice Daniel Goundar said in January last year, Balaggan arrived in Fiji from Australia on an Indian passport.

"When she was returning to Australia, after staying in Fiji for a few days, she was arrested at the Nadi International Airport and was charged with an offence under the Illicit Drugs Act," Justice Goundar said.

He said she engaged a prominent lawyer to represent her and to act as her surety. She stayed at the lawyer's residence in Suva while on bail.

He said on June 13, 2011, the appellant filed a formal complaint with the police that her lawyer raped her on numerous occasions at his residence.

Justice Goundar said Balaggan gave a signed statement to police, describing each episode of rape in detail.

A month later, Balaggan in an affidavit withdrew the rape allegations made against the lawyer saying they were not true and was made in a state of anger. Balaggan, who was now represented by Suva lawyer Samanunu Vaniqi appealed against her sentence on six grounds, five of which failed.

Justice Goundar said the final ground of appeal, the magistrate failed to properly take into account the mitigating factors provided by the appellant, had merits.

He took into consideration Balaggan's previous good character, guilty plea and that she was a young offender.

He told Balaggan that the aggravating factors in the case were that the false information was directed towards her lawyer and that she committed an offence while on bail.

"The lawyer-client relationship is of trust," Justice Goundar said.

"She violated that trust when she falsely accused him of rape.

"In her affidavit, the appellant said she was upset about her lawyer going on holidays in Australia while her case was pending. So she made out a false allegation of rape against her lawyer."

Justice Goundar said on an objective seriousness of the offence, a starting point of two years was appropriate.

He added 12 months to reflect the aggravating factors and reduced 18 months to reflect the compelling mitigating factors.

Thursday, April 26, 2012

While no one was specifically named in the following story, we have a case of another serial false accuser, and I think that is always worthy of greater scrutiny. Sadly, she still isn't named, after a second false allegation. She gave a detailed description and a sketch was released to the public.

While the article doesn't say, one must wonder how many men who fit the description she gave were questioned, or had to give DNA, or even may have had to undergo invasive searches.

Of course, the standard line about not wanting to deter women from coming forward (It still isn't clear how a false allegation would prevent that), and that all reports are taken seriously - as they should be. It would be nice to see a bit more concern for individuals who come under scrutiny, when a false allegation is made.

The article, after the jump.

The YWCA and Toronto police say women shouldn't be deterred by reporting allegations after police say a sexual assault allegation proved to be false.

Police say the unidentified woman made the allegation that she was sexually assaulted twice - once in September and once in November.

The woman even gave a detailed description of her alleged attacker and a sketch had been released.

But YWCA Advocacy Director Susan Blackstock says while it hurts this specific woman's credibility, more often than not women are not believed when they make real allegations of sex assault.

Toronto Police constable Wendy Drummond says they take every report seriously, and they are all investigated. She says in this case Mischief Charges were considered, but were not laid.

She says they encourage women to come forward with allegations of sexual assault, or any other crime.

Wednesday, April 25, 2012

“This complaint was disgusting and disgraceful in its cynicism and dishonesty and Sandra Bainbridge has rightly been held to account for her damaging actions.

“A police officer’s integrity and reputation were questioned and he was subjected to the full rigours of a criminal enquiry. This caused him a huge amount of stress, damaged the morale of his colleagues and had a detrimental effect on his and his family’s health.

“I am pleased that the jury in this case reached the verdict they did, wholly exonerating an officer who, for 18 years, has shown himself to be a capable and diligent officer of admirable courage, morality and integrity.

“The trial extended over three days and required ten police officers to attend court, five of them to give evidence. At no time did Bainbridge take the opportunity to admit her guilt thus avoiding all the expense of a trial.

“While North Yorkshire Police will respond properly to justifiable criticism, will learn from its mistakes and will subject offenders within its ranks to criminal or disciplinary action, we will not stand idly by when our officers are subjected to malicious and damaging complaints.”

Chief InspectorSteve Breen gave the above quotes after Sandra Bainbridge, of Ripon, was found guilty and sentenced to 10 months in jail for making a false sexual assault allegation.

The person she accused? A police officer. So while it is understandable that the Chief would feel the way that he does, it is hoped that he extends the same consideration to any and all cases that come through his station, who are so accused.

Here's what happened:

On March 5th, 2009, police went to Bainbridge's home to arrest a man for violating his bail conditions. Both Bainbridge and the man met the officers with violence. They were both arrested. While in custody, she alleged that one of the officers sexually assaulted her, in front of her home.

The allegation and investigation was turned over to the Independent Police Complaints Commission, who conducted a thorough criminal investigation. It became clear however, as the inquiry progressed, that the reported incidence couldn't have happened.

COTWA applauds Princeton University, which will continue to run campus sexual assault proceedings disciplinary proceedings using a "clear and persuasive" standard, while conducting a parallel process in sexual assault cases using the preponderance of the evidence standard to determine if there has been a Title IX violation. This means an accused student might be cleared of sexual assault, but the school might have a duty to provide support for the accuser. A perfect balance to protecting the accuser while insuring the innocent aren't punished. And the Dept. of Education's Assistant Secretary for Civil Rights Russlynn Ali indicated she wasn't necessarily opposed. We hope all schools follow suit.

Friday, April 20, 2012

Remarks delivered at a Manhattan Institute luncheon, March 28, 2012 in New York City. Professor Johnson and attorney Harvey Silverglate, whose talk will be presented here tomorrow, spoke on "Kangaroo Courts: Yale, Duke and Student Rights."

Before the Patrick Witt case, I had some experience writing about how the New York Times handles cases of sexual assault allegations against high-profile college athletes--the Duke lacrosse case. After all that damage had been done, and after more than a hundred articles had been published in the New York Times, two Times editors, including Bill Keller, issued some half-hearted apologies for how the paper had mishandled the case, and "mishandled" is a generous word for what the Times did.

I had always worked under the assumption that when an institution apologizes, it also takes steps to ensure that it doesn't commit the same kinds of mistakes again. But the Times obviously has a different standard of apology than I do. And in the Patrick Witt case, the same sorts of mistakes were made in coverage -- a presumption of guilt when the allegation is sexual assault, and a decision to ignore critical procedural issue -- because they don't fit the preconceived storylines.

For those of you who aren't familiar with the details, a one-minute summary. Witt was a quarterback, and a very good one, at Yale. He was also a finalist for the Rhodes Scholarship. It turned out that his interview for the Rhodes coincided with the day of the Harvard-Yale game. After some thought, he decided to withdraw his Rhodes candidacy and play in the game, which, alas, Yale lost. But it was a kind of feel-good story of a high-profile college athlete putting his team's needs ahead of his own. And then for more than two months, the world forgot about Patrick Witt, as it should have, until the Times and a reporter, Richard Perez-Pena, swooped in with a nearly 2,000-word article splashed over the front page of the Times sports section detailing that the Rhodes fellowship had suspended Witt's candidacy, because it had learned that he had faced an allegation of sexual assault.

The story left everything else to insinuation, but any reader would have come away with the following conclusions: One, that Yale and Witt had conspired together to present a false explanation of why he had chosen to withdraw. Secondly, that Witt was something of a habitual criminal. And thirdly, that he likely had done it. Nearly one-tenth of the article was devoted to two extraneous and minor alcohol-related arrests of Witt, the inclusion of which in the piece seemed to have the sole purpose of smearing his character. This story received a good deal of public criticism, including from me. And in response, the Times sort of doubled down on the story--exactly what they did in the Duke lacrosse case. They did not reassign Perez-Pena, as they had not reassigned Duff Wilson, their lead reporter in the lacrosse case. But they did authorize the public editor, Arthur Brisbane, to do his own reporting. This is a very odd journalistic strategy: a public editor doing reporting that the paper's own reporter had chosen not to do.

The Times' last line of defense was that this wasn't an attempt to smear Witt's character. It was merely an attempt to expose that he had misled his reasons for withdrawal. Even by those standards, the Times story almost certainly was inaccurate, and it definitely was unproven. The public editor conceded, in paragraph 24 of a 26-paragraph piece, that the original article never should have been published. The best reporting on the case was actually done not by the Times but by the Yale Daily News. And the best analysis of the case was done not by the Times, but by the sports website, Deadspin. And both showed that Witt likely withdrew for the exact reasons that he said, that he wanted to play in The Game, and he felt an obligation to his team.

In its attempt to smear Witt and his reputation, the Times actually missed two very significant stories from the Witt affair. The first was that there was one unequivocally true piece of information in the Perez-Pena article, and that is that the Rhodes Fellowship did suspend Witt's candidacy on the basis of the sexual assault allegation. It was a suspension pending additional action by Yale. Yale had to reauthorize the candidacy, and for reasons I'll talk about in a second, it's likely Yale would have reauthorized the candidacy. And so the question is, was the Rhodes Fellowship justified in that action?

A reader of the Times would have assumed that Witt had faced a sexual assault allegation as we understand sexual assault allegations. In fact, Witt faced no such allegation. He faced an internal allegation at Yale. Any of you who have read Harvey Silverglate's and Alan Charles Kors's book, "The Shadow University," or who spend less than two minutes perusing the F.I.R.E. website, will quickly conclude that college disciplinary processes are wildly tilted to minimize the due process rights of accused students. But Yale, in late 2010, decided that its sexual assault procedures were not sufficiently tilted in favor of the accuser. And so they set up a separate, informal complaint procedure for sexual assault. And it is this procedure to which Witt was subjected. Under this procedure, an accuser can file an allegation of sexual assault against a fellow classmate if he or she determines that that classmate has caused him or her to worry. Generally, worrying does not rise to the level of sexual assault. Once this procedure is initiated, and this is a direct quote from the Yale guidelines, "the goal is to achieve a resolution that is desired by the [accuser]." Generally, we do not have processes in which the goal is to benefit the accuser, and this procedure is designed to give the accuser choice of and control over the process.

In blunt language, this means that the accused student, Witt in this case, does not have the right within the Yale procedure to cross-examine his accuser. He does not even have the right to present evidence of his innocence. The accusation is accepted at face value, and the purpose of the process is to resolve it in a way that the accusing student feels comfortable. It is on the basis of this sort of complaint, filed under this procedure, that the Rhodes Fellowship decided that it needed to suspend Witt's candidacy. That's nothing sort of extraordinary.

The second story that the Times missed, that the Witt case exposed, is that by Yale's own figures, Yale is actually a hotbed of violent crime. Who knew? In the calendar year 2011, there were 13 allegations of sexual assault at Yale, according to Yale's figures. All 13 were filed under this informal complaint process, which means that the accuser never went to police, never received any sort of medical exam, and the accused student never had a right to cross-examine or to present evidence of innocence. To give a sense of how out of whack these figures are, if you accept Yale's standards, on a per capita basis there was more likely to be a sexual assault on the Yale campus, by a factor of between ten and twelve, than in the city of New Haven. And New Haven isn't just any city. According to the FBI, it's the fourth most dangerous city in the country for populations over 100,000. So the Times had one of two stories. Either one of our nation's leading institutions is so dangerous that it's infinitely more crime-ridden than one of the most dangerous cities in the country, or in fact, one of our leading universities is dumbing down sexual assault. It is, in fact, the latter. In a footnote in a lengthy report on this new process, issued by the Yale Deputy Provost, Yale conceded that the university uses, and this is a direct quote, "a more expansive definition of sexual assault than is commonly understood." Indeed, claiming that a "worry" constitutes sexual assault is expansive indeed. And so what a university has done is to take a commonly understood phrase, sexual assault under the law--a phrase that's also basically commonly understood in the general public--and defined it in a way that no one would understand or recognize. That is the real story of the Patrick Witt case.

A final point on Witt. Within this Yale informal complaint process, there is one possible procedural protection that is granted to the accused student, and that is that the process is supposed to be wholly confidential. So the accused student cannot present evidence of his innocence. He can't cross-examine the accuser. He is presumed guilty. But at least he has the benefit of knowing that it won't become public, or at least it won't become public immediately. In Yale's case, and in the case of Witt, even that one incredibly minor procedural protection was violated. And not only was it violated, it was violated with a malevolent intent. Whoever leaked this information to the Rhodes Trust, and it's a very discrete number of people who could have leaked this (either someone associated with the accuser, or I would say more likely, someone within the Yale administration), the goal was to sink Witt's Rhodes candidacy. And that leakage in turn led to the coverage in the Times and the permanent smearing of Witt's reputation. This morning, before I came over, I did a Google search, Patrick Witt, sexual assault, it yielded 33,600 hits. This is what Witt is now remembered for. There is absolutely no evidence that Yale is investigating this breach of its procedures, I emailed the Yale University spokesperson to ask if an investigation was occurring. He declined to respond. And there is no indication that at any point in the future Yale is going to investigate this breach of procedures. Indeed, it seems as if the university is not terribly concerned with assault if the issue is assault of privacy against one of its students. And that is the story of Patrick Witt.----------------Professor KC Johnson teaches history at Brooklyn College and the City University of New York, and is co-author, with Stuart Taylor Jr., of "Until Proven Innocent," an examination of the Duke Lacrosse case.

A John Lewis sales assistant claimed she had been raped because she was so embarrassed about a sado-masochistic sex session, a court heard. Kirsty Sowden, 21, met her victim online after advertising herself as a 'BDSM princess' - standing for Bondage, Domination and Sadomasochism - on a no-strings attached website.

She then voluntarily enjoyed a sex session at Andrew Boarer’s home in Maidstone, Kent, where she was spanked - and even wore a leather dog lead.

But Sowden, who was trying for a baby with her boyfriend at the time, was so guilt-wracked that she called police shortly afterwards and told them she had been raped.

Police eventually untangled the dominatrix’s web of lies and charged her with perverting the course of justice. The investigation had already cost nearly £14,000 and wasted a staggering 376 hours of police time.

Sowden, of Northfleet, Kent, pleaded guilty and was jailed for 14 months when she appeared at Maidstone Crown Court on Monday

Sentencing, Judge Philip Statman said: 'I see little sign of genuine remorse from you or, indeed, any real understanding of just how serious your actions have been.

'Rape is a dreadful crime. False allegations of rape undermine the plight of genuine victims. The impact on your victim has been considerable

'What occurred in the privacy of his home, however much certain members of the community may find that reprehensible, has been made public.

'He has had to move on in work. He has been made the subject of ridicule. The police inquiry involved many officers and many, many hours of police time at considerable expense.

'You are a highly intelligent, well-educated young woman. At the time you were in good, full-time employment. But at the end of the day there is absolutely no doubt this offence passes the custody threshold.'

Sowden met Mr Boarer online in March last year. He was going through a divorce at the time and the pair arranged to meet at his flat.

She agreed to strip off within five seconds of her arrival and the pair indulged in various sex acts, including intercourse. Mr Boarer also put her in a dog collar and lead and spanked her.

In evidence to the court, he described how Sowden had said her boyfriend would kill her if he found out. 'They were trying for a baby and she felt guilty,' he said.

Shortly after the shop assistant had left his flat, she contacted police claiming she had been raped.

She described being attacked by a stranger as she left a gym in Gravesend, Kent, dragged into a park and sexually assaulted.

Police arrested a man based on her description but soon realised he was innocent.

As a separate line of enquiry, police traced DNA samples which led them to Mr Boarer, who was arrested at his workplace in front of a large number of colleagues.

He was questioned and held in a police cell before being released on bail.

It was only later that the police discovered an online exchange between the suspect and Sowden and realised that she had been lying.

Speaking after the case, DC Richard Dorey said that hundreds of hours and thousands of pounds were put into the investigation.

He said: 'The sentence of 14 months in jail is a fair sentence. It should stop people making unfounded allegations and is a very serious sentence for someone so young.

'She was maintaining, up to the last minute, parts of the account. She didn’t seem to want to be completely truthful.'

Malcolm Gilbert, who works for rape charity Family Matters, today condemned Sowden’s actions.

He said: 'The position of the group is unanimous in condemning any woman, or indeed any man, who makes false allegations because of the harm to genuine rape victims, to undermine the whole business of rape.

'It condemns all false allegations and they feel it should be pursued by the police in the way it has here.'

UNC's former Student Attorney General Jon McCay employs a strained and perilous logic to defend the mandate of the Department of Education's April 4, 2011 "Dear Colleague" letter that lowered the standard of proof for sexual assault cases on campus to "preponderance of the evidence."

McCay was asked, "So what about the accused? The . . . standard for proof — a preponderance of evidence, meaning the panel must find it more likely than not that the assault occurred — seems to abandon the innocent-until-proven guilty model students have come to expect from the honor system."

Here is McCay's response, as reported by the Daily Tarheel: "Though McCay concedes that, in practice, the new standard would likely result in more guilty convictions, he is quick to point out that it wouldn’t create any new cases of sexual assault."

McCay concedes the new standard likely will result in more guilty convictions, but by asserting that the new standard won't "create any new cases of sexual assault," he seems to take it as a given --without bothering to explain why -- that the new standard will not subject students to punishments they don't deserve.

That, of course, is a conclusion that is unwarranted because it is only reasonable to conclude that the risk of wrongfully punishing innocent students is enhanced by lowering the standard of proof.

McCay seems to suggest that under the pre-"Dear Colleague" system, few sexual assault claims were punished because the standard of proof was too high. According to the newspaper: "Last year, there were 43 cases of sexual assault reported through the University’s available avenues, but the honor system only saw one of them. This semester, with a public push for assault awareness, the court has tried three — still not ideal."

So what's the solution? "McCay explains that the new system would make it easier for the University to hold those responsible for sexual assault accountable."

No one disagrees that holding more rapists responsible for their misconduct is a laudatory goal. The problem is that McCay doesn't bother even to consider whether the new standard poses the risk of punishing innocent students. And it does.

The article goes on: "By treating victims and assailants as equally credible, the honor system will likely see an increase in reporting — not an increase in sexual assault."

There are numerous problems with that assertion. The suggestion is that it's possible to do justice by pitting the credibility of the accuser against that of the accused, and if the scales tip ever so slightly in favor of the accuser, to severely punish the accused.

Earlier in the article, Mr. McCay himself conceded that adjudicating sexual assault cases is difficult: “It’s always ‘he said,’ ‘she said. It’s not like a plagiarism case where you can bring in emails, Google searches and drafts of a paper. There aren’t any witnesses; it’s not like a cheating case where someone can say they saw a student looking at someone else’s test.”

Respectfully, then, Mr. McCay, the absence of corroborating evidence to establish guilt or innocence in "he said/she said" cases is scarcely a valid justification for making it easier to punish the presumptively innocent. Just the opposite. It is a sound reason to be ever more vigilant of the possibility of punishing an innocent person for something he or she did not do.

Most disturbing of all is how Mr. McCay blinks at a principle long-settled in our jurisprudence that was famously expressed by the celebrated English jurist William Blackstone. Blackstone said it is "better that ten guilty persons escape than that one innocent suffer." (Commentaries on the Laws of England, 1765.)

And that's the point that is most frequently misunderstood in the debate about the "Dear Colleague" letter: a wrongful acquittal is a terrible thing, but it is never the equivalent of a wrongful adjudiciation of guilt. The risk of getting it wrong is why the standard of proof has to be higher than "preponderance of the evidence." Students have an enormous interest in not being expelled for sexual assault because such punishment can be tantamount to, and is sometimes worse than, a deprivation of liberty. “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,” Cornell law professor Cynthia Bowman recently said. “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” See here.

Even attorney Brett Sokolow, who is probably the leading victim's advocate on Amercan campuses, has expressed concern that "a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX.” He, too, points out that the stakes are high for students expelled for sexual assault: expelled students no longer automatically have the option of just registering at another school. Nowadays, schools share information, which makes that problematic, so students who are expelled have a lot more at stake.

Mr. McCay ends on a cautionary note -- to men. According to the newspaper article: "If anything, the new standards send a message that men, too, must bear part of the responsibility for preventing sexual assault. Part of this prevention is awareness and a better understanding of consent. We’ve all heard it, but McCay says it again: 'Only a clear ‘yes’ means yes. Consent isn’t supposed to be vague.'”

Reminding students about the necessity of consent is always a good thing. But Mr. McCay offers no advice to students who are wrongfully charged with sex offenses. The risk of punishing the innocent is not something Mr. McCay seems at all concerned about.

Wednesday, April 18, 2012

If you think that a year after the April 4, 2011 "Dear Colleague" letter, American colleges have entered an era of peace and tranquility when it comes to their handling of sexual assault claims, you would be wrong. It would be easy to dismiss COTWA's concerns as lacking objectivity since it is our mission to tell the stories of the wrongly accused. But it's not so easy to dismiss the views of attorney Brett Sokolow, founder of the National Center for Higher Education Risk Management, which helps colleges across America mold their sexual assault policies to enhance the rights of alleged victims.

Mr. Sokolow says colleges are having a "fear-based reaction" to the Federal government's Title IX policy, and "that a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX.” Mr. Sokolow says the reaction borders on "hysteria."

He points out that expelled students no longer automatically have the option of just registering at another school. Nowadays, schools share information, which makes that problematic, so students who are expelled have a lot more at stake.

Hans Bader: colleges err on the side of punishing 'everybody in sight'

Or, listen to Hans Bader, a former attorney with the Department of Education’s Office of Civil Rights and one of the leading authorities on the subject: he says that campus disciplinary boards are so fearful of Title IX lawsuits, that they will inevitably err on the side of punishment. “Innocent people get found guilty of harassment because the school realizes the only way it can avoid liability is to punish everybody in sight,” Bader said.

Student sues college, claims rape policies discriminate against males

Edwin Bleiler, a student who was expelled from Holy Cross in Massachusetts on the day he was supposed to graduate last spring, is fighting back. Mr. Bleiler allegedly sexually assaulted another student. The accuser maintained she was intoxicated and unable to consent. Mr. Bleiler contends she wasn’t incapacitated but acted willingly. Mr. Bleiler is suing Holy Cross. He argues the college’s policies discriminate against male students in violation of his Title IX rights. An attorney for Bleiler, Emily Smith-Lee, contends his Title IX claim is premised on the argument that the school's policies are inherently tilted against men, by creating different standards for male and female students. We've written about Mr. Bleiler's case here.

And by the way, Russlyn Ali, the assistant secretary who oversees the Department of Education’s Office of Civil Rights, said: “Title IX protects all students, male and female, against sex discrimination."

Wendy Murphy: Colleges must protect 'victims,' and that means abandoning due process 'fantasy' of the accused

Wendy Murphy weighed in, and her comments are troubling: Title IX requires putting a thumb on the scale in favor of alleged victims — such as the “preponderance of the evidence” standard the Obama administration has said schools must use in adjudicating such cases. According to the news report: "Colleges must protect victims, she says. That means abandoning the fantasy they can make everybody happy by also offering accused students the full due process rights they’d enjoy in a criminal trial. 'You can’t run a school that way,' Murphy said. 'If every once in a while a school has to be sued at the cost of being fair to all students, so be it.'”

A man spent eight years behind bars for allegedly sexually abusing his stepson who later recanted. The man was denied parole that would have released him early because he refused to admit that he did it and refused to participate in any "treatment" programs. This, despite the fact that the National Parole Board and prison authorities knew about the recantation.

The stepson says he was never sexually abused by his stepfather but he was forced by his biological father to lie to police. The biological father “held a knife to my throat and threatened me with harm” unless he said that his stepfather “had sexually abused me.” The stepson swore he was “afraid my father would hurt me if I told the truth.”

Tuesday, April 17, 2012

A transsexual has made 19 rape claims over the last decade - and it has cost the taxpayer £200,000 to investigate them.

The woman, in her 30s, made her latest claim after allegedly being attacked.

Each time a rape is reported police are forced to spend £10,000 on legal fees, carrying out forensic tests and investigating.

It is unclear whether any of the cases have led to a prosecution.

The woman made her 19th rape claim after allegedly being attacked when she went to meet a man for sex in Sutton, Surrey, the Sun reported. She had first been contacted by him on an internet dating website.Scotland Yard confirmed that a 26-year-old man had been arrested in connection with the incident before being released on bail. The suspect allegedly recorded the woman threatening to have him arrested.

A police spokesman refused to discuss whether the woman had made any other rape claims.

Officers have no choice but to probe every single claim because of the risk of getting it wrong. Every time an allegation of rape is made the suspect is arrested and handcuffed, taken to a police station, and has his fingerprints taken.

If police dismissed cases because they didn't believe the allegations, it would discourage victims from coming forward. Police missed two opportunities to catch rapist taxi driver John Worboys, 57, who targeted 102 women over a five year period. After the high-profile blunder they are extra careful to look into all cases.

If rape claims are shown to be invented, police have the power to prosecute the person who made the claim for wasting police time.

Jo Wood, from Rape Crisis England and Wales, said that the woman should be free to report every alleged rape.

'It looks to me as if she could do with some support work - she seems to be ending up in these situations where she is in danger,' she said. 'She is obviously screaming out for help. Given the amount of money that has been spent investigating these cases they should be asking further questions and trying to help and support this woman. The fact that someone has come forward 19 times is phenomenal - and it is great that the police are investigating them all.'

An editorial in the Daily Tar Heel, the student newspaper at the University of North Carolina at Chapel Hill, praises the school's new sexual assault policy and defends the school's decision to substantially lower the burden of proof in such cases from “beyond a reasonable doubt” to “a preponderance of evidence.”

"We appreciate the honor system’s stringent usual standard of evidence, which conforms to an innocent-until-proven-guilty principle," the editorial opines. Then, in one of the more startling statements we've read recently, the editorial asserts: "In practice, however, such a high burden of proof can feel tantamount to victim-blaming."

Insisting that there be reasonable certainty before declaring someone factually guilty of an offense that will alter his life has nothing whatsoever to do with "victim blaming," and suggesting that the two are linked, even by a "feeling" that they are, is troubling on a host of levels. It evinces a profound absence of appreciation for a standard long-cherished in our jurisprudence as vital to due process and fair treatment. It is universally accepted that the "beyond a reasonable doubt" standard reduces the risk of punishing the presumptively innocent based on factual error.

The editorial itself recognizes that the prosecution of sexual assault cases is "complicated." That is generally correct because such cases often come down to a battle of "he said/she said" evidence. But the absence of overriding evidence to establish guilt or innocence is scarcely a valid, or, respectfully, a serious-minded justification for making it easier to punish the presumptively innocent. Just the opposite. It is a sound reason to be ever more vigilant of the possibility of punishing an innocent person for something he or she did not do.

Students have an enormous interest in not being expelled for sexual assault, because such punishment can be tantamount to, and is sometimes worse than, a deprivation of liberty. “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,” Cornell law professor Cynthia Bowman recently said. “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” See here.

The editorial posits an unconvincing conclusory coda: "The accused are of course also entitled to fair treatment, which they’ll continue to receive under the new system." Nowhere does the editorial bother to note the undeniable fact that the reduced standard of proof will make it easier to find an innocent student guilty of something he did not do.

This editorial manifests a disturbing, and woefully misinformed, disregard of the rights and interests of the presumptively innocent.

A three-judge Spanish appeals panel has ordered “a final unappealable closure of a wholly false yet widely publicized claim” of alleged sexual assault lodged against a Saudi prince, HRH Prince Alwaleed Bin Talal Bin Abdulaziz Alsaud, 57. The prince was accused of an alleged sexual assault by a young Spanish model identified only as "Soraya," who claimed she was drugged and raped aboard the Turama yacht moored in Ibiza in August 2008.

The prince has maintained that he was not even in Ibiza that day, but in France with his wife, children, grandchildren and other witnesses.

The model originally pointed out another man as the alleged rapist. A year after the case was brought, her lawyers somehow concluded that the prince supposedly was the rapist. The model and her mother Susana admitted that they only learned of HRH Prince Alwaleed by searching the internet for "Saudi Royal Family." The prince is the richest Arab in the world with a €13.78 billion fortune according to Forbes. He's one of the top 20 richest people in the world.

The Palma de Mallorca Provincial Court ruling pointed to a number of “inconsistencies, the absence of any corroborating evidence of her continuously changing story and the fact that all the physical evidence, including a physical examination by an independent physician after the night in question and the report of an independent toxicologist, contradicted her claims of assault and drugging.”

In a statement the prince said: “No one’s character should be subject to such dishonest attacks.” As a way of “discouraging” others from similar actions in the future, the prince is pursuing criminal actions against the model, her mother and her attorneys as well as professional sanctions against the lawyers for their “unethical behavior."

Among his many businesses of all kinds, Al Waleed is 30 per cent owner of Mixta Africa, a company dedicated to building cheap homes in Senegal, Algeria and Mauritias.

Sunday, April 15, 2012

If I were to ask you to think of a hero who refused to give up his or her seat on a vehicle of public accommodation merely because of their birth class, you likely would think of Rosa Parks, a black woman who is properly lionized as a civil rights icon. Ms. Parks refused to give up her seat in the front of a Montgomery, Alabama bus in 1955, even though the seats up front were “reserved” for white people.

You likely would not think of J. Bruce Ismay. Ismay was chairman of the company that owned Titanic, who famously survived the disaster, 100 years ago today, but was widely accused of cowardice because he took a seat in a lifeboat that, many believed, could have gone to a woman.

No one has ever confused Mr. Ismay with Ms. Parks, nor should they. Mr. Ismay was not taking a stand, figuratively speaking, for oppressed persons, but for himself. Still, the expectation that Mr. Ismay should have given up his seat because of his gender is interesting. It's a sentiment that echoed even in the recent sinking of the Costa Concordia. (This, in contrast to the instruction of an evacuation specialist: "I think the priority would be that you would help people who appear to need help. Children obviously need help. But helping women is not necessary. Women don't need help just because they are women. It's more important to identify the people who need help. That's important and that's what people tend to do." See here.) It is impossible to defend the view that anyone be deprived of their seat — on a bus, a train, a roller coaster, or even a lifeboat — simply because of their birth class.A newspaper article written shortly after the Titanic disaster talked about the “armchair hero” who would sooner sit in judgment of the men who did not lose their lives on the ill-fated ship than applaud the contributions of those who did. The article explained: “‘Women and children first,’ is the rule of the sea. In the case of the Titanic, it was ‘Women, children, and pet dogs.’ But the armchair hero would press this rule so far as to veto the escape of any man at all. It is probable that many men died rather than face the armchair hero, who would demand explanations from them of their cowardice in daring to be alive. Perhaps this explains why some of the boats were not filled. The armchair hero is not appeased by the appalling death-roll of men. He asks for more. Surely this is sentiment gone mad, chivalry gone to seed.” See here.

It is well to remember Titanic for a number of reasons, not the least of which are its lessons about gender, which still resonate today.

For the uninitiated, the disaster struck men much harder than women, because the men aboard Titanic were societally expected to sacrifice their lives for women, and they obliged. The startling demographics from the disaster are as follows:

114 women died, 324 women survived: 72% of the women survived.1339 men died, 325 men survived: 19% of the men survived.

In 1912, chivalry was a powerful social influence, and here’s the difference from today: both its practitioners and beneficiaries knew it. The giant front page headline of the April 16, 1912 Arizona Journal-Miner read as follows: “1800 ARE LOST IN OCEAN . . . Report is That Most of Saved are Women And Children Indicating Chivalry On Part of Adult Male Passengers.”

While the overwhelming consensus at the time was to salute the brave men who gave their lives, the sentiments of one group, the suffragettes, were decidedly less laudatory. The suffragettes seemed to understand that special, undeserved privilege for women did not comport with the gender equality they championed, so they simply refused to acknowledge that the treatment women received was either special or undeserved.

Some of them declared that the propagation of the human race depended on chivalry, but their reasoning had more leaks than Titanic. This, according to the New York Times, April 19, 1912:

“English Suffragettes of prominence, when questioned as to what they thought of the men who died on the Titanic in order that women might be saved, seem to have manifested a disposition, possibly significant, almost to resent the inquirer’s obvious belief that the display of chivalry was magnificent. While the strenuous ladies did not deny that the behaviour of the men was rather fine, they hinted that after all it only fulfilled a plain duty and therefore had not earned any particularly enthusiastic praise.

“As one of the suffragettes put the case, by natural law women and children should be saved first, the children because childhood is sacred, and the women because they are so necessary to the race that they cannot be spared. Another said: ‘It must be admitted that the lives of women are more useful to the race than the lives of men.”

(New York Times, April 19, 1912)

If women were spared because of their child-bearing duties, the suffragettes never bothered to explain why the many women beyond child-bearing years were also spared while their male counterparts, who were able to produce sperm throughout their lives, condemned themselves to an icy grave and the worst kind of death.

Another suffragette went so far as to suggest that men and women aboard Titanic were, in fact, treated equally, even though the men largely died and the women largely were saved. This was so because the “women, though saved through the noble sacrifice of men, were in the equally hard situation of having to see the ship go down” (New York Times, April 20, 1912) You see, there was no qualitative difference between the sacrifice of the persons who actually gave up their lives and the persons for whom that sacrifice was made. Who would have guessed?

The suffragettes weren’t prepared to give up their belief that women were entitled to special treatment, for reasons they couldn’t rationally explain.

But most everyone else understood that women were singled out for special treatment on the Titanic, and it was apparent to those who thought about it that such special treatment did not comport with gender equality. Following the disaster, Clark McAdams, columnist for the St. Louis Post-Dispatch, contrasted women’s desire for the vote with what occurred on Titanic:

“Votes for women!”Was the cry,Reaching upward to the Sky.Crashing glassAnd flashing eye-“Votes for Women!”Was the cry.“Boats for women!”Was the Cry.When the braveWere come to die.When the endWas drawing nigh-“Boats for women!”Was the cry.

Nevertheless, the men’s chivalry was widely applauded, and the views trivializing the sacrifice of the men did not play well. The headline for an April 20, 1912 New York Times story was openly disdainful of the suffragettes:

SUFFRAGETTES DENY CHIVALRY ON TITANIC

“Women first” Is the Universal Rule, says Sylvia Pankhurst, and This Is No Exception

SACRIFICE IS SCOFFED AT

Jangling Note Disgusts English Nation, Proud of the Way Men Died

Consistent with the prevailing sentiment, and fittingly enough, a 13-foot tall statue in Washington, D.C. erected in 1931 by the Women’s Titanic Memorial Association honors the brave men who gave their lives on Titanic. The inscription reads:

TO THE BRAVE MEN WHO PERISHEDIN THE WRECK OF THE TITANIC APRIL 15 1912THEY GAVE THEIR LIVES THATWOMEN AND CHILDREN MIGHT BE SAVEDERECTED BY THE WOMEN OF AMERICA

The memorial was not without its detractors. “Some feminists criticized the memorial, saying it was inappropriate to not only commemorate but perpetuate the notion of chivalry.

Margaret [Molly Brown] responded that she thought it was very brave that some men had chosen to step aside and let women and children live — but the gesture should never have been required by law or custom.” (Molly Brown: Unraveling the Myth, by Kristen Iversen, Muffet Brown at 226 (1999).)

Molly Brown, of course, “got it.”

Now, 100 years after Titanic,in important ways, we are less honest about gender than we were when the mighty ship sank. In 1912, society freely acknowleged the chivalry at work on Titanic. Today, we claim to embrace gender equality, yet chivaly is alive and well and manifests itself in countless ways — and we pretend it doesn’t exist. Like the elephant in the room, it leaves its imprint on virtually every institution, but it’s rarely acknowledged. It manifests itself in family law proceedings; the objectively proven gender disparities in criminal sentencing; the lopsided government funding asymmetry favoring diseases affecting women over diseases that affect men; the requirement that only males must register for selective service and that only males may serve in combat; the special government programs that assist girls in school but not boys even though boys need more help; and the fact that there are numerous programs that assist women breaking into the the business world while there are no programs that assist men breaking into the domestic world.

Like the suffragettes, deep down we are certain that chivalry can’t be reconciled with our enlightened notions of gender equality, so we do what the suffragettes did — we deny it exists, or we rationalize it away. In 1912, such denial was limited to one marginalized group and was disparaged by society as a whole. Today, denial of chivalry is so widespread it’s the norm.

It is no epiphany that the chivalry that manifests itself in our modern institutions is wholly inconsistent with gender equality. This was apparent even when Titanic sank. In the aftermath of the Titanic disaster, a smart woman writing about the astounding chivalry of the Titanic’s men also couldn’t help but notice the decline of chivalry in everyday life. She well understood that chivalry must give way if true equality is to flourish. Here’s what she wrote, less than one month after Titanic sank:

“‘Men are not what they were.’ The phrase falls from the lips of every woman. In it’s train falls the stereotyped indictment: Politeness is a forgotten art; deference to womankind is unknown. In a packed tram, the woman is allowed to stand while the man sits; in a rush for the boat, the woman is shoved aside by the more muscular man; in offices or shop, the girl worker receives no consideration from the man; and so on and so on. The grievance is lengthy…

“Yet it may all be true. Very likely ‘men are not what they were’ because, you see, women are not what they were, and things have to balance themselves. We decline altogether these days to have a sphere of our own; we walk triumphantly into man’s. We not only want, we insist on having, his privileges, his pleasures, his work, occasionally ousting him out of them, in any case sharing them willy nilly…

“But we must remember what Nursie taught us long years ago; you cannot have your cake and eat it, much as you wish to. And if man finds you persistently invading his domain, sharing his pursuits, working as a man, acting as a man, aping man’s free and easy arrogance, he is apt to forget, despite your apology for petticoats, that you are not a man. You want to be a free and independent comrade? Well, then, accept the penalties as well as the pleasures of comradeship.”

Friday, April 13, 2012

A man was denied a job after a prospective employer ran a background check that returned a 1987 rape conviction.

The problem is that the man, Samuel M. Jackson, was just 4 years old in 1987. The actual rape conviction was for a man named Samuel L. Jackson, who was incarcerated at the time the check was run.

The National Consumer Law Center says situations like that have become much more common as more background checks are performed. Criminal background checks conducted on prospective employees routinely contain errors, mismatch people or misclassify criminal offenses. Information that a job applicant who was arrested was found innocent may not be contained in the information supplied to the employer.

"The report’s authors urged the Consumer Financial Protection Bureau to draw up regulations to ensure that background checks are accurate and to require background-check companies to register with the bureau so consumers have an opportunity to correct false or misleading information.

"They also urge the Federal Trade Commission to investigate the many companies that employers use to make sure they are not violating the Fair Credit Reporting Act, a federal law that protects consumers from false information in credit reports."

Forensic scientists are studying women's knickers and how they tear to help police determine whether a sexual-assault complaint is authentic.The Otago University study on how several types of common underwear fabric tear under force has been published in the latest Forensic Science International journal.

Researchers said the results could be important in cases of false sexual assault accusations where underwear had been torn using scissors or a knife.

The paper said identifying a false sexual-assault claim was difficult, and often damage to clothing was the only form of forensic evidence.

"False criminal reports are a reality for law-enforcement officials, waste police, forensic and judicial resources, and can lead to a possible miscarriage of justice," it said.

"Damage to knicker fabrics does not appear to have been systematically investigated previously."

The researchers looked at three knit fabrics, both new and laundered and typical of those used to manufacture knickers, and a machine was used to mimic tearing.

"Apparel collected at crime scenes is likely to have been worn and laundered multiple times prior to the event. Hence, from a forensic perspective, it is important to understand how laundering affects the behaviour of fabrics and any damage to the fabric produced in the commission of a crime," the paper said.

The study looked at fabrics, not garments, and the researchers warned the results of the study "may not be appropriate to apply to actual garments".

Thursday, April 12, 2012

Police have dropped charges of stalking and harassment filed against a Pennsylvania man, and have instead filed charges against the woman they say falsely accused him.

According to the news report, in a bar in Mount Pleasant, Pennsylvania, the false accuser desired to make her boyfriend jealous, so she started kissing the victim. The false accuser and the victim left the bar and started walked toward victim's house; suddenly, the false accuser ran from him. Police officers happened to see the false accuser running along the street, and she told them she was running from the victim, whom police earlier saw crossing the street behind her. Police arrested the victim and charged him with stalking and related offenses.

She later admitted he had done nothing wrong, and that she lied about the stalking.She was charged with false reports, false incrimination and public drunkenness.

Wednesday, April 11, 2012

COTWA: On April 11, 2007, the North Carolina Attorney General's Office dropped all charges against three indicted team members, saying they are innocent of the charges. This is a piece in commemoration of that anniversary.

Of Duke, Trayvon and Santayana

BY Christine Flowers in The Philadelphia Daily News

Five years ago today, perhaps the greatest injustice since the Scottsoboro Boys were framed for rape was finally resolved.It wasn’t a triumph, since the victims had been forced to endure a particularly searing crucible for well over a year.But at least it was a mediocre form ofjustice, which in this case, was better than no justice at all.Of course I’m talking about the Duke Lacrosse Players, three young men who were falsely accused of rape by a black stripper who went on to rack up a series of convictions and is currently accused of murdering her boyfriend.It’s a shame that they will always be known as “The Duke Lacrosse Players” or “The Duke Three.”Their names were considered unimportant to the media vultures who looked at them as a three-headed hydra of privilege, bigotry and misogyny.But they were good people who just happened to fit a profile.

A profile of race.

Of class.

Of gender.

No one marched in Love Park to demand that their rights be vindicated.Not a single cable news network ran prime-time marathons seeking justice for them.President Bush didn’t say that if he’d had a son, the boy would have looked like them.

I write this to remind all of us that while the Trayvon Martin case is clearly steeped in race (and anyone who denies that fact is deluding themselves or looking to become an editor at NBC where they tend to engage in creative editing,) let’s not forget what happens when you start whipping up the hysteria without having all of the facts.

George Zimmerman is in no way an innocent victim of circumstance, unlike the completely blameless Duke boys.He shot an unarmed youth, and whether he did it because he was apprehensive about Trayvon’s race or because he was a wannabe cop without the credentials but with the firepower, the man needs to be held accountable.

Anyone with a legal background and an ability to read statutes knows that’s the case, even if their politics prevent them from admitting it out loud.

But it seems that very little has changed in five years.Journalists still rush to judgment because it sells papers and airtime.Race hucksters care more about getting their faces on camera than about the carnage in the streets.Some parents count more than others (I don’t remember the parents of the Duke Three being asked to speak before Congress about false accusations of rape.)

And with each passing day, I am eerily reminded of Santayana’s warning:

Penn lowered the standard of proof in cases involving alleged sex offenses to "preponderance of the evidence," but according to an editorial in The Daily Pennsylvanian, the student newspaper at the University of Pennsylvania, "deliberations on the policy change did not include the wider Penn community. The Office of Student Conduct, which was behind the change, was far from transparent about its process."

In the news story announcing the change, the only voices quoted are those applauding it. One professor, Political Science professor Rogers Smith, said it will “change the outcomes” of cases at Penn. He added: “It will mean that judgments that a person is guilty of sexual harassment will be easier to achieve.”

Neither Professor Smith, nor any of the other persons quoted, acknowledged that by lowering the standard of proof, the school increases the possibility of punishing innocent students. The entire tenor of the article blesses the process using a "preponderance of the evidence" standard with an infallibility that doesn't exist.

The absence of transparency at Penn, and its apparent failure to consider the critical and difficult balance at the heart of the sexual assault debate (the need to punish offenders while insuring that the innocent aren't punished with them), is in stark contrast to the robust and serious debate at Cornell over the same issue. See, e.g.,here. (And Mike Wacker's piece on this issue in the Cornell Daily Sun should be required reading at Penn, and every other school.)

Penn's lack of transparency does a grave disservice to a very serious issue.

A woman, 23, met her husband to try to patch up her broken marriage. They had sex, but he refused to end their estrangement, so she went to the police and falsely accused him of rape. She reported that he forced her to have oral sex by grabbing her head and forcing his penis into her mouth. Then, he supposedly pushed her on the bed and forced her to have vaginal sex.

The husband was arrested and held in custody for fifteen hours. The husband showed police a video he had taken of their sex act on his cell phone. The video shows that she was enjoying it -- she was giggling and laughing -- and that it was consensual.

Police confronted the wife, and she admitted it was all a lie. She had lied to get her husband in trouble because she was angry at him. According to her attorney, she lied because he had behaved "in an unchivalrous way" toward her.

The wife was convicted and jailed for nine months for perverting the course of justice.

The readers who commented under the original news story largely mirror the public's palpable disgust with false rape claimants. Invariably, some readers insist that these kinds of stories give license to men to videotape their sexual encounters in order to avoid unjust deprivations of liberty. It is well to keep in mind, however, that most men who secretly, and illegally in many jurisdictions, record their sexual encounters, do so for reasons having nothing to do with the fear of false rape claims.

Still, it is not certain what might have happened if there had been no video in this case. When people are incarcerated, whether for years, or even for "just" fifteen hours, because of a lie about rape or sexual assault, and the lie is exposed only due to the happenstance that a video exists to prove the truth, it undermines public confidence -- including the confidence of potential jurors -- in the integrity of all rape accusers.

The woman, and others who lie about rape, do a grave disservice not just to the persons their lies target, but to all rape victims.

Erica Juarez, a former Hall County jailer, landed in jail herself she falsely accused a co-worker of sexual assault, according to the Georgia Bureau of Investigation. Special Agent in Charge, Kim Williams, said that Juarez told authorities on the first of April, that while off duty, a co-worker sexually assaulted her.

A press release from the Hall County Sheriff's Office stated that the investigation was turned over to the GBI, which determined the allegation was false. Both Juarez and the co-worker resigned during the investigation.

Juarez was arrested and booked into the Hall County Jail for making a false claim this last friday, and later released on bond.

Rights Advocates Spar Over Policy on Sexual Assault

The Cornell Daily Sun,April 4, 2012

Victims of sexual assault could have an easier time proving their accusations if the University Assembly approves changes to campus policy next week. But opponents of the changes say that students accused of assault — who face expulsion from the University — would lose critical rights and safeguards if the U.A.’s resolution is approved.The debate about how to protect victims’ rights without creating a system that unfairly treats the accused has been raging at Cornell for a year. With the U.A.’s vote next week, the discussion may finally reach a conclusion.

The proposed changes, which were endorsed by a U.A. committee in February after extensive debate, would lower the standard of proof required in sexual assault accusations. They would also move the process for adjudicating the regulations out of the Campus Code of Conduct and into the system that is already used for faculty and staff accused of assault.

That existing system, known as Policy 6.4, calls for an investigator to gather the facts relating to the accusation, decide whether the alleged assault occurred and then recommend corrective actions.

That process is markedly different from the one currently in place for accusations against students. The existing system, under the Code of Conduct, includes a variety of protections for the accused — protections modeled after the criminal justice system — that Policy 6.4 does not incorporate. Among them is the use of the University Hearing Board, which hears arguments by the opposing sides and then makes a decision. The UHB is composed of members of the Cornell community, including students, who have received special training in order to receive their positions on the board. Under the Code, both sides of the dispute can also bring in outside lawyers to help argue their cases.

The proposed changes are promoted by victim advocates, who say the new system would create a fairer process and better protect students who have been sexually assaulted.

Policy 6.4, which was adopted in July 1996, “has provided a fair, effective and prompt process for both parties,” Nelson Roth, deputy University counsel, said in a letter to the U.A.

Eva Drago ’12, who is on the board of the Women’s Resource Center, told The Sun last semester that she would support a process that prevents sexual assault victims from having to detail their experiences to fellow students — who currently sit on the UHB — and that will limit the role of lawyers, who can currently cross-examine victims when the cases are presented. Both of those changes would take place if the process were moved to Policy 6.4.

Still, the proposal faces opposition.

“The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,” Prof. Cynthia Bowman, law, said in a statement to the U.A. “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.”

“Indeed, there is general agreement among faculty at the Law School that the procedures being proposed are Orwellian,” she added.

Prof. Kevin Clermont, law, who serves on the U.A.’s Codes and Judicial Committee and has been a vocal opponent of proposals to lower the burden of proof in sexual assault cases, said he agrees with Bowman’s sentiment.

“Not all would characterize the procedure as Orwellian; some have used instead the term Kafkaesque,” he said. “Across the political spectrum, law professors are in agreement that such an administrative procedure is fundamentally unfair.”

Matt Campbell law, who is also on the CJC, argued that the move to Policy 6.4 “should be rejected full stop.” He wrote to the U.A. that accepting the proposal would result in “removing all safeguards provided by the Campus Code (including lowering the burden of proof) and divorcing students from the process of making future modifications regarding this issue.”

Ahead of the U.A.’s meeting — which is scheduled for Tuesday afternoon — the assembly’s chair, Melissa Lukasiewicz ’14, will hold a question and answer session on the proposed changes. The session will take place on Monday at 2:30 p.m. in B16 Day Hall, Lukasiewicz said.

The debate over how to respond to sexual assault accusations has grown out of a temporary amendment to the Code of Conduct — which will remain in effect until a new resolution is passed — that was hurriedly approved last spring to ensure the University stayed in compliance with new U.S. Department of Education directives.

An office within the Department of Education issued a letter last April to schools and universities that, Cornell administrators argued, required the University to make immediate changes to its process for dealing with sexual assault accusations in order to remain in compliance with Title IX — a federal law that prohibits discrimination on the basis of gender in educational programs funded by the federal government.

If Cornell did not make the changes quickly, the administrators said, the University would be “out of compliance” and could be sanctioned by the Education Department.

However, in her letter to the U.A., Bowman wrote that the Education Department’s directive “is not an administrative regulation, has not been subjected to notice and comment, and thus does not have the status of law.”

In deciding how to respond to the department’s letter, Bowman said: “The University should focus on precisely what its goal should be. Is it merely to conform in order to eliminate any possibility of losing federal funds? Although even a private university receiving federal funds is subject to this sanction, it has, in fact, never been applied. Is it to reduce any possibility of legal liability on the part of the University? Or is it to produce a campus free of sexual violence? Taking sexual harassment and sexual offenses out of the Code will not accomplish either of these last two goals.”

But Roth, the deputy University counsel, disagreed with Bowman’s reading of the letter. He said that the Department of Education had made it clear that a system, such as Cornell’s, that does not give equal rights to the victim and the accused is not fair and equitable.

The temporary amendment that resulted from the government’s letter lowered the burden of proof required in sexual assault cases, making it easier for a student to win a case against another student. It also gave the accuser the same rights as the accused student to appeal the decision.

The amendment led to a burden of proof in sexual assault cases that is lower than the burden required for other offenses in the Code of Conduct. The disparity created the philosophical question of whether it made sense to have different burdens of proof for different accusations within the same Code, and it created the practical question of how a case should be decided if a student was accused of both sexual assault and another offense.

“I don’t think that it will work to keep it the way it is now,” Judicial Administrator Mary Beth Grant J.D. ’88, told The Sun in November, referring to the differing standards of proof in the Code.

That concern is part of the motivation behind the resolution on which the U.A. will vote next week. If the assembly approves the proposal, it will be sent to President David Skorton for his signature.

From The Cornell Daily Sun:

Ensuring Legal Protection for All

In response to a letter from the Department of Education, when a student is accused of sexual assault or sexual harassment, Cornell may no longer try them under the Campus Code of Conduct, which provides a robust set of protections for the accused modeled after the criminal justice system. Instead, they would be tried under University Policy 6.4, which strips away many of these protections and also uses a lower standard of proof. Advocates of these changes, including the Women's Resource Center, hope to create a system friendlier to sexual assault victims and more likely to bring the guilty to justice, which by itself is certainly an admirable goal.

However, before anyone signs off on these changes, one critical question must be asked: How many innocent people must suffer to ensure that the guilty are brought to justice?While the intentions behind these proposed changes are admirable, the basis for these changes is fundamentally and irrecoverably flawed. It seemingly assumes that the accuser is the victim. But if that were true, why would we even need any sort of trial in the first place? These measures would make complete sense in a counseling session provided by the Women’s Resource Center, but they make no sense in a trial incorporating changes advocated by the Women’s Resource Center.

At times, one wonders if those proposing the changes have even considered the possibility that the accused may in fact be innocent. For example, while banning cross-examination and lawyers may create a friendlier environment for an accuser who is also a sexual assault victim, if the accused is innocent, how will he or she have any hope of exposing the holes in the accuser's story without a cross-examination or a lawyer trained to find these holes?

Those who oppose these changes do not oppose victims' rights, they merely recognize that in the case of a false conviction, it is the accused, not the accuser, who is the real victim.

Furthermore, past experiences at Cornell and other universities suggest that such concerns are practical and not just theoretical. Unfortunately, under University Policy 6.4 and similar policies at other universities, all records are kept confidential, meaning that if abuses of due process occur, an outside entity will not even be able to know that said abuses occurred, much less advocate against those abuses.

However, Prof. Maas, who was tried for sexual harassment under a special Professional Ethics Committee instead of the Code of Conduct, challenged his conviction in court, which made many of the confidential trial records public as part of the lawsuit. The book The Shadow University gives an excellent account of his trial on pages 296-300; here are some of the highlights (or perhaps lowlights):

While a single column would not provide enough space to list all the problems with the rules of conduct and evidence, this quote from the trial's chair will succinctly summarize them: “We have to make the rules as we go along.”

Even though Prof. Maas’ career was on the line, not only was he not allowed a lawyer, but he also was not allowed to have a law professor as an advisor because he was “too much of an expert.”

Not only could Prof. Maas not cross-examine his accusers, he was not even allowed to be in the same room as them so as not to upset the alleged victims. No presumption of guilt there!

That Professional Ethics Committee sounds eerily similar to University Policy 6.4. Sadly, these sorts of problems pervade not just Cornell, but many other universities. At the University of North Dakota, Caleb Warner was convicted of sexual assault and expelled from the university, even though police, looking at the same evidence, charged the accuser with making a false report to law enforcement. Even then, it still took a year and a half and pressure from the Foundation for Individual Rights in Education before UND would reinstate Caleb. And of course, who can forget the Duke lacrosse scandal? The rape and sexual assault of a woman by three lacrosse players led to the cancellation of the lacrosse season, the firing of the lacrosse coach and a national uproar about sexual assault … until it turned out the accuser's story was false.

Nonetheless, deputy University counsel Nelson Roth has stood his ground, advocating the legal necessity of these changes. From a risk management and legal liability point of view, he may be right. But when fundamental rights are at stake, should there not be more important concerns than legal liability? Is Cornell a university or just a mere corporation?

In light of the clear and convincing evidence against using University Policy 6.4 to handle sexual harassment and sexual assault cases, and the rights at stake which are more important than legal liability, I would recommend that the University Assembly and President Skorton keep in mind the “counsel” in deputy University counsel: You should always listen to counsel, but you do not always have to follow it.

Mike Wacker ’10 is a former Sun columnist and former Sun Assistant Web Editor. He may be reached at mew66@cornell.edu. Guest Room appears periodically this semester.